Presidential Signing Statements

The Bush-Cheney
White House is responsible for the birth of a new
constitutional doctrine. He has elevated himself to become
a judiciary of one. . When the president signs
legislation passed by Congress, he frequently adds his own
signingstatement stating those legislative
provisions he intends to ignore based on his interpretation
of the Constitution. This caused the New York
Times to note, “President Bush doesn't bother with
vetoes; he simply declares his intention not to enforce
anything he dislikes.”

Through the magic of the
president’s petulant pen, signing statements never
mentioned in the Constitution, Bush has ordered the torture
of prisoners and spying on U.S. citizens without a warrant.
Just have the boys in the back room knock out one of those
signing statements. It’s all good.

But this seems odd.
We’ve never seen a creature quite like this before. As
Common Sense Common Grounds poster Noonan points out, the U.S. Constitution
describes the division of federal powers in a fashion that
even a sixth grader can understand.

The following is
from the American Barr Association’s Law Day curriculum
for elementary school students.

Apparently the current
occupants of the White House were so clever they skipped the
sixth grade. This was evidenced most recently when Vice
President Cheney tried to tell the House Government
Oversight and Government Reform Committee that he wasn’t a
member of the executive branch. Which branch might you
belong to, he was asked? Unfortunately Cheney backed down
without uttering what was probably on his mind, “The only
one that counts, my branch you fools!”

The Limited
Use of Signing Statements in the Past

It is not
uncommon for a president to attach a signing statement to
legislation outlining the importance and significance of the
act either to the public or government agencies. These are
called rhetorical and political signing statements. They don’t change or
challenge laws passed. Broad based constitutional signing
statements, uncommon in the past, are now a very serious
matter. Essentially, the chief executive states that he
will not enforce parts of legislation that he signs into law
because he thinks it is unconstitutional, a power not
granted to the president.

The accumulation of all powers, legislative, executive,
and judiciary, in the same hands, whether of one, a
few, or many, and whether hereditary, self-appointed, or
elective, may justly be pronounced the very definition
of tyranny.

The assertion of a presidential
power to refuse to enforce a law stands in deep tension with
the constitution. As the Supreme court has repeatedly
recognized, the take care clause--which provides that
the President "shall take care that the Laws be faithfully
executed"--establishes that the President does not hold the
royal prerogative of a dispensing power, which is the power
to dispense with or suspend the execution of the laws. The
take care clause, then, makes plain that the
President is duty-bound to enforce all the laws, whether he
agrees with them or not.

If a president feels
compelled to issue a signing statement, it’s expected that
he will proceed only when a dire constitutional violation is
involved He should attempt to get the sections he finds
abjectly unconstitutional changed by Congress and also take
the matter to the Courts. President Clinton objected to a
defense bill requiring immediate
discharge of military personnel with HIV AIDS. After the
signing statement, he tried to reverse this legislatively
and took it to court. This was the rare exception, not the
rule until 2001.

The Bush Signing Statements –
Slouching Toward Tyranny

It’s no surprise that the
two previous reigning champions of signing statements
include former President’s Reagan and George H.W. Bush.
But their record is nothing compared to the 43rd president.
He signs with a vengeance invoking broad constitutional
powers foreign to the executive branch. He is a self
proclaimed judiciary of one.

Unless Bush
thought this up on his own, it was some strange council that
urged the frequent use of the aberrant practice. Cheney,
Gonzales, or Ted Olson, who knows? There’s a long list of
suspects.

Despite having a Republican Congress for the
first six years of his reign, Bush issued signing statements
containing 1046 constitutional challenges to the
legislation that he’s signed. There are two common
elements.

The first is petulance. If he wants to ignore
any part of a bill that Congress passes, Bush simply issues
a signing statement and implements his subversive scheme.
As Kinkopf said earlier, “… the President does not hold
the royal prerogative of a dispensing power … the power to
dispense with or suspend the execution of the laws.”

The
second element involves an Orwellian process of creating
meaningless words that support the process. The key words
are unitaryexecutive. Stripping away
historical distortions, “the unitary
executiveis a code word for a doctrine that favors
nearly unlimited executive power. Bush has used the doctrine
in his signing statements to quietly expand presidential
authority.”

Legal scholar and former Reagan Justice
Department official, Bruce Fein, testified before Congress
and explained how the process works. Fein pointed out that
the Bush signing statement for the Detainee Treatment Act
of 2005, which prohibited torture, lead to a 180 degree
change in the law:

…unitary
executive and Commander in Chief powers (used in the
signing statement) clearly signify that President Bush is
asserting that he is constitutionally entitled to commit
torture if he believes it would assist the gathering of
foreign intelligence. President Bush nullified a provision
of statute that he had signed into law and which he was then
obliged to faithfully execute.Bruce Fein,
June 27, 2006, Senate Committee on the
Judiciary

Torture and White
House protest courtesy of signing statements. War supporters
in the background exercise their constitutional rights by
suggesting that the protesters wires be turned live. WikiMedia Commons and MatthewBradley, Creative
Commons

Perpetual Power
Consolidated

Perpetual presidential power consolidated
is the purpose of these statements. An historical interpretation places the emergence of
signing statements in the context of declining presidential
power as a result of the Viet Nam War and Watergate. In
reaction to these events, chief executives, particularly the
current Bush, tasked their Office of Legal Counsel to find a
way to accumulate more power for the executive branch.

While this effort has achieved spectacular results, I
argue that the diminished presidential powers after Nixon
were more in line with the correct vision of the
Constitution’s authors. Their skepticism regarding
absolute power was based on first hand experience with rule
by a mad monarch plus strong historical evidence. The
Parliamentarian victory in the English Civil War brought the
possibility of popular rule to the British Isles. As
good students of history, they were aware of how that
promise was undone by the restoration of monarchy, tyranny
by definition, leading to the aggregation of power in the
hands of one – the king.

The progress of the United
States since the 1950’s is marred by one failure after
another due to the delusions allowed by solitary executive
functioning. The net gains from the following executive
actions are negligible, the losses irredeemable: Viet Nam;
massive civil rights violations related to voting,
employment, and First Amendment freedoms; the Iran-Contra
affair; the several hundred military incursions in foreign
lands; 1,000 U.S. military installations in over 60
countries; and the pervasive tragedy of Iraq.

These
adventures concocted by presidential tyranny reflect more on
the need to control the human lust for power than they do on
any rational policy. The costs are subtracted directly
from progress made in science, commerce, and the expansion
of the creativity and benefits by a population willing to
work, experiment, and achieve.

A Whimper Not a
Bang

Former Nixon counsel and journalist John Dean
discussed the Bush abuse of signing statements. He
anticipated a strong reaction from
Congress:

In short, Bush's signing statements,
which are now going over the top, are going to cause a
reaction. It is inevitable. If Republicans lose control of
either the House or Senate - and perhaps even if they don't,
if the subject is torture or an egregious violation of civil
liberties -- then the Bush/Cheney administration will wish
it had not issued all those signing statements. John Dean 1/13/06

Wishful
thinking for a legislative body which somehow keeps
forgetting these words from the Constitution: “The
Congress shall have the power … To declare War, grant
Letters of Marque and Reprisal, and make Rules concerning
Captures on Land and Water.”(Article 1,
Section 8, Clause 1)

The Republicans lost control of
both the House and the Senate. But, alas, the reaction of
Congress to the unitary executive and his scribbling
is barely noticeable. Perhaps the next president will begin
his term by attaching a simple note to the first legislation
he or she signs: “I will take care that the laws of the
United States are faithfully executed.”

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